Severson v. Peterson, 83-1105

• Decision Date: 20 March 1985
• Docket Number: No. 83-1105,83-1105
• Citation: 364 N.W.2d 212
• Parties: Paul SEVERSON and Zella Severson, Appellants, v. Gary PETERSON and Susan Peterson, Appellees.
• Court: Iowa Supreme Court

Page 212

364 N.W.2d 212

Paul SEVERSON and Zella Severson, Appellants, v. Gary PETERSON and Susan Peterson, Appellees.

No. 83-1105.

Supreme Court of Iowa.

March 20, 1985.

T.J. Braunschweig, Algona, for appellants.

Rick Potter, Buffalo Center, for appellees.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, McGIVERIN, and LARSON, JJ.

LARSON, Justice.

This discretionary review raises two issues: First, whether a petition to vacate a judgment under Iowa Rules of Civil Procedure 252 and 253 is available in a small claims action under Iowa Code chapter 631; and second, whether an appellee in a discretionary review may raise other issues by cross-appeal in lieu of a separate application for discretionary review. We hold the petition to vacate is not an available remedy in small claims court and that a discretionary review does permit cross-appealing of other issues. We affirm on both appeals.

The appellants, Paul and Zella Severson, filed a petition in the small claims division of district court against the defendants Peterson, asserting a claim for delinquent rent and damage to real estate. The Petersons counterclaimed against the Seversons for wrongful eviction. The magistrate ruled in the defendants' favor on both issues, concluding that the plaintiffs, who did not appear for the hearing, had failed to prove their claim. The magistrate also held that the Seversons had defaulted on the counterclaim filed against them and entered judgment for the Petersons, as tenants, for wrongful eviction.

The Seversons then filed a petition to vacate the judgment under Iowa Rules of Civil Procedure 252 and 253, asserting they had had no notice of the hearing. The Petersons resisted the motion and submitted a claim for attorneys fees accrued in resisting it. The magistrate concluded that a petition to vacate was not an available proceeding in a small claims court, citing Barnes Beauty College v. McCoy, 279 N.W.2d 258 (Iowa 1979), and held it had no authority to entertain the petition. It also denied the Petersons' application for attorneys fees.

Seversons appealed to district court, asserting error in denying the petition to vacate, and the Petersons' cross-appealed on the issue of attorneys fees. The district court judge affirmed both orders. Seversons then applied to this court for discretionary review. Iowa R.App.P. 201. The application was granted.

The Petersons continued to keep the issue of attorneys fees alive by "cross-appealing" to this court. Seversons resisted, arguing that a cross-appeal may not be taken in a discretionary review case and that the only way for this court to review the matter of attorneys fees would be by a separate application for discretionary review. This court denied Seversons' motion to dismiss the cross-appeal and ordered that it be submitted with the main appeal.

I. The Petition to Vacate.

While we have not previously addressed the question whether rules 252 and 253 apply in a small claims action, we have held that there is no procedure in a small claim case for granting a new trial under Iowa Rule of Civil Procedure 244. See Barnes Beauty College, 279 N.W.2d at 259-60. Some of the language of that case is pertinent here:

For these small claims suits, the legislature thought it was in the public interest to provide a simpler, easier, and less expensive procedure than was afforded in district court under the Rules of Civil Procedure. Under the plan an action can be brought by filing a form provided by the clerk of court. § 631.3. The clerk can help fill out the form. § 631.3(2). According to § 631.7(1) no formal written pleadings or motions are required although the court may allow them.

Barnes Beauty College, 279 N.W.2d at 259.

This court in Barnes Beauty College also noted that relief was available to a losing party in the form of an appeal to district court. We then noted:

On the basis of the foregoing we think the legislature's omission of any provision for new trial motions was deliberate. Providing such a motion would be a step toward formalism, expense, and delay in obtaining final judgment. And new trial motions are incompatible with the legislature's desire that any party wishing so could appear without counsel.

Id. at 260.

We find these same considerations persuasive here and militate against a recognition by us of a proceeding under rules 252 and 253 for vacation of a judgment in small claims court. No hint is given in chapter 631 of any such post-trial motions. Also, because the grounds for vacation of judgment are fairly complex, recognition of such procedure would almost certainly require the assistance of an attorney, a step toward the formalism sought to be avoided in small claims actions. It could, in effect, make a "federal case" out of a small claims action.

The Seversons, however, point to a potential problem involving fraud. They argue that, unless a petition to vacate is permitted in a small claims action, fraud in the judgment may go unremedied. We do not agree. In the first place, no fraud is alleged here. Moreover, while our holding today prevents the application of rules 252 and 253 in a small claims action, this would not necessarily preclude an independent action if the judgment is actually procured by fraud. There is a uniformly recognized independent action, aside from rule or statutory provisions, for vacation of certain judgments procured by fraud. See, e.g., Restatement (Second) of Judgments §§ 64-68, at 137-75 (1982). See also Sorenson v. Sorenson, 254 Iowa 817, 824-25, 119 N.W.2d 129, 133-34 (1963); City of Chariton v. J.C. Blunk Construction Co., 253 Iowa 805, 817-24, 112 N.W.2d 829, 835-39 (1962); 46 Am.Jur.2d Judgments § 655, at 810-11 (1969); 49 C.J.S. "Judgments" § 269, at 486-89 (1947). In view of this principle, it is not necessary to recognize the statutory petition to vacate in order to avoid the effect...